Winten Property Group Limited v North Sydney Council

Land and Environment Court (NSW)|1986-06-02|Before: Lloyd J, Cripps J

CITATION : Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 APPLICANT: Winten Property Group Limited PARTIES : RESPONDENT: North Sydney Council FILE NUMBER(S) : 11059 of 1999, 11060 of 1999, 11061 of 1999, 11062 of 1999, 11063 of 1999 and 11064 of 1999 CORAM: Lloyd J KEY ISSUES: Section 56A Appeal :- error of law - whether decision-maker misdirected himself as to the question of fact to be answered Environmental Planning and Assessment Act 1979 s 5 Land and Environment Court Act 1979 s 39(6), s 56A LEGISLATION CITED: State Environmental Planning Policy No. 1 cl 3, cl 5, cl 6 and cl 7 North Sydney Local Environmental Plan 1989 North Sydney Local Environmental Plan 1989 (Amendment No. 60) Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139; Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367; Burwood Municipal Council v Harvey (1995) 86 LGERA 389; Coffs Harbour Environment Centre Inc. v Coffs Harbour City Council (1991) 74 LGRA 185; Coles v Woollahra Municipal Council (1985) 60 LGRA 133; Craig v The State of South Australia (1995) 184 CLR 163; Hooker Corporation Pty Limited v Hornsby Shire Council, NSWLEC, Cripps J, 2 June 1986, unreported; CASES CITED: Housing Commission of New South Wales v Tatmar Pastoral Co. Pty Limited [1983] 3 NSWLR 328; Memel Holdings Pty limited v Pittwater Council (2000) 110 LGERA 217; North Sydney Council v Ligon 302 Pty Limited (1995) 87 LGERA 435; North Sydney Council v Ligon 302 Pty Limited [No. 2] (1996) 93 LGERA 23; Parramatta City Council v Hale (1982) 47 LGRA 319; Randwick Municipal Council v Crawley (1986) 60 LGRA 277; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247; Steedman v Baulkham Hills Shire Council (1993) 80 LGERA 323; Wesport Marina Development Pty Limited v Concord Council [2000] NSWLEC 184 DATES OF HEARING: 04/12/2000 and 05/12/2000 DATE OF JUDGMENT: 04/06/2001

APPLICANT: Mr M H Tobias QC with Ms S A Duggan (Barrister) SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT: Mr B J Preston SC with Mr D R Parry (Barrister) SOLICITORS: Mallesons Stephen Jaques

JUDGMENT: 22 IN THE LAND AND Matter Nos. 11059, 11060, 11061 ENVIRONMENT COURT 11062, 11063, 11064 of 1999 OF NEW SOUTH WALES Coram: Lloyd J Decision date: 6 April 2001 Winten Property Group Limited Applicant v North Sydney Council Respondent REASONS FOR JUDGMENT 1. On 17 August 2000, after a nine-day hearing, the Senior Commissioner of the Court delivered a reserved judgment in which he allowed six appeals brought by the applicant, Winten Property Group Pty Limited against a determination of the respondent, North Sydney Council, ("the council") to refuse six development applications. The council now appeals against the decision of the Senior Commissioner, such appeal being limited to a question of law (section 56A, Land and Environment Court Act 1979). 2. The six appeals relate to an allotment of land at Berrys Bay, Waverton. One appeal was in relation to a development application to subdivide the land into five residential allotments. The remaining five appeals were in relation to development applications to erect a dwelling-house on each of the allotments to be created by the subdivision. The relevant planning controls 3. The land had for some time previously been zoned for industrial purposes and was used for that purpose by British Petroleum Limited in conjunction with adjoining land used as a fuel storage facility. On 5 March 1999, North Sydney Local Environmental Plan 1989 (Amendment No. 60) ("Amendment No. 60") was published in the Gazette, by which the land was rezoned to Zone No. 2(a) Residential. The provisions of Amendment No. 60 are of some importance. Clause 2 sets out the aims of the instrument, which relevantly include the following: Aims, Objectives, Etc

This plan aims to: (a) rezone part of the land to which this plan applies to Zone No. 2(a) Residential, under North Sydney Local Environmental Plan 1989; ... (g) ensure that view of Berrys Bay from Larkin Street and existing residential premises are not unreasonably affected, and protect and enhance views of the land from the water; ... 4. Clause 5 of Amendment No. 60 amends the North Sydney Local Environmental Plan 1989 ("the LEP") by inserting clause 73. That clause relevantly provides as follows: Former BP Site, Coal Loader Site and Caltex Site, Balls Head.

(1) This clause applies to the land known immediately before the commencement of this clause as the Former BP Site, Coal Loader Site and Caltex Site, Balls Head. ... (4) The council must not consent to the erection of a building on the BP freehold land if the proposed development will, in its opinion, result in significant loss of views from surrounding properties and public spaces, including roads, laneways and parkland. ... The reference in sub-clause 73(4) to "the BP freehold land" includes a reference to the subject land. 5. Clause 9 of the LEP contains the zoning table. Sub-clause (2) provides: 9 (2) Where the Table to this clause specifies the objectives of a zone or zones, the Council shall not consent to development which, in its opinion, is inconsistent with the objectives specified in relation to the zone in which the development is proposed to be carried out. 6. The zoning table to clause 9 sets out the general objectives of the residential zones, which include the following: General Objectives of Residential Zones ... (b) to provide additional housing without adversely affecting the amenity of existing residential areas; ... (d) to ensure that the residential development is carried out in an orderly manner without adversely affecting the scale and character of a locality and to ensure that new housing is compatible with the surrounding existing development;… 7. The specific objectives of Zone 2(a) include:

(b) to permit a form of development which is compatible with the scale and character of the existing locality; ... 8. A number of other provisions of LEP are of particular relevance, namely clauses 12, 13 and 13A. Clause 12 effectively limits the height of any building in residential zones to two-storeys. It relevantly provides:

12 (1) A building, other than an infill development, a dwelling-house on a small lot, or a residential flat building, shall not be erected on land in Zone No. 2(a), 2(b), 2(c), 2(d) or 2(f) having more than two storeys measured vertically above any point at natural ground level. 9. Clause 13 requires buildings to comply with a building height plane. The term "building height plane" is defined as "a plane projected at an angle of 45 degrees over a site commencing 1.8 metres above natural ground level along a boundary of the site or along any other line or boundary specified in this plan for the purpose of establishing a building height plane" (clause 5). Clause 13 provides as follows:

13 (1) Subject to sub-clause (2), a building shall not be erected on a site in zone No. 2(a). 2(b), 2(c), 2(d) or 2(f) where any part of the building will exceed a building height plane projected at any point from any boundary of the site. (2) A building may be erected which does not comply with the building height plane provided the building, when erected - (a) will not materially increase the overshadowing of adjoining properties; (b) will not materially reduce the level of privacy enjoyed by adjoining properties; (c) will not materially obstruct views from adjoining buildings; and (d) will not materially reduce the level of daylight and ventilation to existing development, and no well founded objection is raised to the proposed building. 10. Clause 13A provides that a dwelling-house shall not be erected within Zone No. 2(a) unless 50% of the site is landscaped area. The proposal 11. None of the proposed dwelling-houses comply with clause 12. Each proposed dwelling-house is, at least in part, three storeys. An objection against this development standard was made by the applicant under State Environmental Planning Policy No. 1 ("SEPP 1"). None of the proposed dwelling-houses comply with the building height plane as required by clause 13. No objection was made against this development standard under SEPP 1, although it is noted that sub-clause 13(2) allows the erection of a building which does not comply with the building height plane provided that the pre-conditions described therein are satisfied. 12. None of the proposed dwelling-houses comply with landscaped area requirement of clause 13A. An objection against this development standard was made by the applicant under SEPP 1. 13. The proposed dwellings would also result in loss of views from surrounding properties so that the objectives of Amendment No. 60 and the provisions of clause 73(4) were relevant. The decision of the Senior Commissioner 14. The Senior Commissioner acknowledged the above-mentioned provisions as being issues in the hearing. The Senior Commissioner identified the relevant clauses as issues associated with the individual residencies in the following terms (in par [9] of his decision): Issues Associated with Individual Residencies

Whether the non-compliance with clause 12(1) of NSLEP 1989 (storeys) is acceptable and whether the objection pursuant to State Environmental Planning Policy should be upheld. 2. Whether the non-compliance with clause 13 (Building Height Plane) of NSLEP 1989 is acceptable, in terms of the relationship with the proposed public reserve to the south, other proposed residences within the site and existing residences to the north of the site. 3. Whether the proposal complies with clause 13A of NSLEP (landscaped area) and whether the application can be approved having regard to the absence of an objection under SEPP 1 in this regard. 4. Whether the proposed development is consistent with clause 73(4) of NSLEP (view loss from surrounding residential properties and public places) and whether the proposed landscaping is appropriate in this regard. ... 15. The Senior Commissioner also acknowledged the fact that the same provisions were issues associated with the proposed subdivision (also in par [9] of his decision): Issues Associated with the Subdivision

Whether the proposed plan of subdivision is appropriate having regard to its lack of compatibility with the established pattern of subdivision of the adjoining residential area. ... 3. Whether the proposed plan of subdivision is appropriate having regard to the need to comply with the provisions of NSLEP 1989, including clause 13 (building height plane); clause 13A (landscaping) and clause 12 (storeys).

Whether the proposed plan of subdivision is appropriate having regard to the need for compliance with clause 73(4) of the NSLEP 1989 (view loss from surrounding residential properties and public places). ... 6. Whether the proposed subdivision facilitates development consistent with the aims and objectives of NLEP 1989 including clause 2(c), (d), general objectives of the residential zones (d), (h), (j) and 2(a) zone objective (b). ... 16. In his consideration of the issues the Senior Commissioner, adopting the same numbering as the issues which he had itemised, set out the following (in par [35] of his decision): Development Applications for residences

Given the configuration of the proposed buildings and in particular their relationship to the ground level deemed to be a "natural ground line" as defined in the LEP, the development is seen as entirely acceptable as amended and should be supported by the relief available under State Environmental Planning Policy No. 1. The application of a storeys height control as contained in the LEP is this instance would be both unreasonable and unnecessary. 2. As the attached three-dimensional drawings demonstrate, exceedence of the building height plane in regard to each of the lots is extremely minor. Under these circumstances rigidly requiring compliance is also both unreasonable and unnecessary.

Negotiation between the consultants established that departures from the 50% standard are in all instances quite small, even if taken on the basis of Ms Laidlaw's more pessimistic figures. The one exception to this generality is lot 2 which appears to be approximately 13% below the nominated figure. Given the general configuration of lot 2, particularly as now amended, again it is not seen as reasonable to rigidly apply the statutory 50% in this instance. 4. See separate consideration to follow. ... 17. The reference under item 4, "See separate consideration to follow" , is a reference to what the Senior Commissioner sets out under the sub-heading "Impact on Views of Adjoining Owners" (par [36] et seq). Without expressly referring to clause 73(4) or to the aims of Amendment No. 60, the Senior Commissioner there purports to consider the issues raised thereunder. I shall presently return to examine this part of the Senior Commissioner's decision to determine whether it discloses any errors of law. 18. Under the heading "Conclusions" the Senior Commissioner makes the following statements: ... [56] However, quite apart from simplifying the basis of the conclusions the Court has to come to, there is another rather disquieting aspect to this litigation. It is that such remarkable resources have been brought to bear on what is, in the end, much more a matter of competing private interests than one of significant public interest. [57] One has to wonder whether all of the inevitably substantial funds required to support the pursuit of this matter before the Court would have been better spent on other things than supporting what appear to be fundamentally unreasonable expectations with regard to views of a very limited sector of the North Sydney public. No doubt in the ultimate that is something for the citizens of North Sydney to decide and also individual applicants constrained to respond to decisions considered unacceptable. In this context one has to wonder if the Land and Environment Court's conventional approach of not assigning costs remains valid. ... [60] With regard to the vexed question of impact on the views of adjoining owners, I am satisfied that upon the basis of the material provided jointly by the parties, the ultimate arrangement of buildings on the land has created an acceptable solution. However it is appropriate to say immediately that such a solution has not achieved an absence of visual affectation. To expect that such a result would be achieved is fundamentally unreasonable and in any case it would be inconsistent with the objectives in the relevant instruments. No doubt the adjoining owners will find this conclusion unpalatable but it is not the job of the Court to "sweeten every pill" however mild the taste. Does the Senior Commissioner's decision disclose any error of law? 19. The first thing to be noted about clauses 12, 13, 13A and 73(4) is that they each amount to pre-conditions which must be satisfied before the proposed development can be approved on a consideration of the merits. Unless the hurdles presented by each of these provisions can be overcome then the consent authority has no power to grant its consent. 20. I turn, therefore, to the Senior Commissioner's consideration of each of these pre-conditions. Clause 12 21. I have noted (in par [16] above) the Senior Commissioner's consideration of this issue (under sub-par 1 of par [35] of the decision). It is to be noted that the Senior Commissioner makes the statement: "the development is seen as entirely acceptable". He continues: "the application of a storeys height control as contained in the LEP in this instance would be both unreasonable and unnecessary". 22. SEPP 1 has the stated aim of providing flexibility in the application of the planning controls operating by virtue of development standards where strict compliance with those standards would, in any particular case, be "unreasonable or unnecessary" or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") (clause 3). SEPP 1 prevails over any inconsistency between it and any other environmental planning instrument, whenever made (clause 5). 23. Clause 6 of SEPP 1 provides that where a development could, but for any development standard be carried out, the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard "is unreasonable or unnecessary in the circumstances of the case and specifying the grounds of that objection". 24. Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of the Policy, as set out in clause 3, it may (with the concurrence of the Director) grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6 (clause 7). The reference to the concurrence of the Director does not deprive the Court of jurisdiction since section 39(6) of the Land and Environment Court Act enables the Court in an appeal to determine the appeal notwithstanding the absence of such concurrence. 25. The judgment of Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) has been described as a classic statement of the approach to be taken when considering an objection under SEPP 1 (see, for example, the judgment of Talbot J in Memel Holdings Pty Limited v Pittwater Council (2000) 110 LGERA 217 at 220). In the Hooker Corporation case Cripps J said (at 6): It has been established by a series of decisions in this Court that generally in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Although the court has urged a generous application of SEPP No. 1 and has repeatedly declined to attempt exhaustively to define the limits of the dispensing power and, in particular, what is embraced by the expression "circumstances of the case", it is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. ... Furthermore it is now established that although the discretion conferred by SEPP No. 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act. 26. In applying the above-mentioned judgment, it seems to me that SEPP 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case. 27. Memel Holdings Pty Limited v Pittwater City Council, to which I have referred was an appeal against a decision of the Senior Commissioner. Talbot J said (at 221): The failure to identify the objectives of the development standard and then to consider whether, in the light of those objectives, it was unreasonable or unnecessary to apply the development standard in the subject case means that the Senior Commissioner fell into legal error on a matter which was fundamental to the ultimate decision. 28. It seems to me that the Senior Commissioner has in the present case fallen into the same error which he committed in Memel Holdings. I refer to the Senior Commissioner's statement that "the development is seen as entirely acceptable as amended and should be supported by the relief available under State Environmental Planning Policy No. 1". In this respect the Senior Commissioner has misdirected himself. His reference to "the development" instead of to the non-compliance and to it being seen as entirely "acceptable" without reference to the object or purpose of the standard or to the objects of the Act suggests that he has undertaken a merit assessment rather than assessment under SEPP 1. 29. A finding of fact may reveal an error of law where judge (or commissioner) has misdirected himself (that is, in this case that "the development is seen as entirely acceptable"), or where he has defined otherwise than in accordance with law the question of fact which he has to answer (Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 156, per Glass JA). I refer also to the Senior Commissioner's further statement: "The application of height control as contained in the LEP in this instance would be both unreasonable and unnecessary". The Senior Commissioner's statement that it "would be both unreasonable and unnecessary" is a conclusion. The reasons why the Senior Commissioner has reached such a conclusion are not set out. The Senior Commissioner might have been misled by the first of the identified issues, "whether the non-compliance with clause 12(1) of NSLEP 1989 (storeys) is acceptable...". But this is not the test for determining an objection under SEPP 1. As in Memel Holdings, the Senior Commissioner has erred in law; and in this case he has erred on a provision which is a pre-condition to the permissibility of the proposed development. Clause 13 30. I have noted in par [16] above the Senior Commissioner's consideration of this issue (under sub-par 2 of par [35] of his decision). As noted above, there was no objection under SEPP 1 against the development standard contained in clause 13 of the LEP. This was presumably because sub-clause 13(2) provides that a building may be erected which does not comply with the building height plane provided that the building, when erected, satisfies the requirements of that sub-clause. 31. Again, it seems that the Senior Commissioner misdirected himself in his consideration of clause 13. The Senior Commissioner's reasons state: "exceedence of the building height plane in regard to each of the lots is extremely minor. Under these circumstances rigidly requiring compliance is also both unreasonable and unnecessary." However, the fact that the exceedence of the building height plane is "extremely minor" is irrelevant to the considerations required by sub-clause 13(2). And there is no reference in sub-clause 13(2) to compliance being "unreasonable and unnecessary". Sub-clause 13(2), which I have set out in paragraph 9 above, sets out different criteria which must be satisfied before a building may be erected which does not comply with the building height plane. Unless an affirmative answer can be given to each of the criteria specified in sub-clause 13(2), the exceedence of the building height plane operates as a prohibition on the proposed development. 32. In the present case there is no finding by the Senior Commissioner that the criteria specified in the sub-clause 13(2) have been met; in particular, the final requirement that "no well founded objection is raised to the proposed building". The evidence shows that there were objections from the owners of adjoining residences that the development would obstruct views from adjoining buildings. There is no finding by the Senior Commissioner that those objections are not well founded. 33. In misdirecting himself as to the questions which are raised by sub-clause 13(2) and the failure to make the positive findings which are called for, the Senior Commissioner has thereby erred in law. Clause 13A 34. The Senior Commissioner's discussion of the landscaping control is set out under sub-par 3 of par [35] of his decision (noted in par [16] above). An objection was made under SEPP 1 against this development standard. The evidence shows that the development on the proposed lots 2, 3, 4 and 5 did not comply with the requirement of this clause that 50% of the site must be landscaped area. 35. As with clause 12, the Senior Commissioner has misdirected himself. The fact that the departures from the 50% standard may be "quite small" is to misstate the test. That is not the test as to whether an objection under SEPP 1 should be allowed. In this context, no reference is made by the Senior Commissioner to the SEPP 1 at all, or to whether compliance with the standard is unreasonable or unnecessary. There is no reference to the underlying object or purpose of the standard. There is no consideration of whether compliance with the development standard is consistent with the aims of the Policy, particularly whether it would tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act. For example, how is it suggested that compliance with the development standard would hinder the promotion and coordination of the orderly and economic use and development of land? It seems that the Senior Commissioner has ignored the assessment which is called for by SEPP 1 by his reference to the exceedence as being meritedly small and to his conclusion that "it is not seen as a reasonable to rigidly apply the statutory 50% in this instance." In my opinion the Senior Commissioner has again misdirected himself by answering the wrong question and has thus erred in law. Clause 73(4) 36. I turn now to the Senior Commissioner's consideration of issue No. 4 relating to clause 73(4) of the LEP. I have note (in par [16] above) that sub-par 4 of par [35] of the Senior Commissioner's decision states: "See separate consideration to follow." That is a reference to par [36] of his decision (and following) under the sub-heading "Impact on Views of Adjoining Owners". 37. It must be emphasised that clause 73(4) is not simply one of a number of matters which the consent authority must take into consideration. It provides that the council must not consent to the erection of a building on the land if, in its opinion, it would result in significant loss of views from surrounding properties, etc. 38. Nowhere, however, does the Senior Commissioner state that he has formed the requisite positive opinion called for by clause 73(4). The Senior Commissioner uses phrases such as: "the extent of the impact on adjoining owners was generally at an acceptable level" [37]; "what is clearly required in the ultimate is the application of a practised eye and a mind that embodies the notion of what is a reasonable impact under the circumstances" [39]; "the totality of the views available" [40]; and "it seems entirely appropriate to apply the word 'reasonable' to the exercise of an appreciation of visual impact" [40]. There is a reference, however, to "what is being sought [by the statutory instruments] is not the elimination of any impact on any view but the avoidance of a significant impact on views" [40]. None of the language employed by the Senior Commissioner (except perhaps the last) adopts the statutory test, namely, whether the development would result in significant loss of views. The assessment appears to be more of a merit assessment rather than whether there is compliance with a pre-condition. 39. The Senior Commissioner then goes on to consider separately the impact upon each adjoining property. Again, the Senior Commissioner uses expressions which demonstrate the general merit assessment of the proposed development rather than an application of and answer to the test prescribed by clause 73(4). 40. I have also set out (in par [18] above) par [60] of the Senior Commissioner's decision under the heading "Conclusions". Once again, the Senior Commissioner uses the wrong test in his use of expressions such as "acceptable solution" and "fundamentally unreasonable" on the question of impact on the views of adjoining owners. Whilst these are quite acceptable considerations on a merit assessment, they do not answer the test required by clause 73(4). 41. It seems that the Senior Commissioner also fell into error in another respect. I have set out (in par [18] above) pars [56] and [57] of the Senior Commissioner's decision. The Senior Commissioner appears to be critical of the council in promoting "competing private interests" rather than the public interest (par [56]) and in supporting "views of a very limited sector of the North Sydney public" (par [57]). 42. These statements, however, suggest that the Senior Commissioner has completely overlooked the stated aims of Amendment No. 60 to the LEP (which I have set out in par [3] above). One of the aims is "to ensure that views of Berrys Bay from Larkin Street and existing residential premises are not unreasonably affected…"(clause 2(g)). Amendment No. 60 to the LEP effected a rezoning of the subject land from industrial to residential. It is the clear intention of the amendment that in effecting such rezoning the private interests of a very limited sector of the North Sydney public are to be given primacy in the event of any proposed development. Contrary to the suggestion of the Senior Commissioner that these are inappropriate considerations, the planning instrument requires an analysis of any impact of a proposed development on the private interests of a very limited sector of the North Sydney public, namely those occupying existing residential premises. 43. The statements of the Senior Commissioner in pars [56] and [57] of his decision appear under the heading "Conclusions" and before his conclusions on the impact on the views of adjoining owners. This suggests that these irrelevant statements had a bearing upon the Senior Commissioner's ultimate decision to allow the appeal and approve the development. A consideration of irrelevant matters which affects the ultimate decision amounts to the error of law (Parramatta City Council v Hale (1982) 47 LGRA 319 at 335). 44. Each of the provisions of the LEP to which I have referred, namely clauses 12, 13, 13A and 73(4) require making of findings which are jurisdictional. They are, as previously noted, pre-conditions which must be satisfied before consent can be granted to a development application. In this respect it is useful to set out what is said in the joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v The State of South Australia (1995) 184 CLR 163 at 177 and 179: An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

… Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. … If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. 45. In applying the above-mentioned principles it is apparent that the Senior Commissioner, in failing to make the factual findings required by clauses 12,13, 13A and 73(4) and (in relation to clauses 12 and 13A) by SEPP 1, did not enliven the court's jurisdiction to make the orders which he did and thereby erred in law. Clause 9(2) 46. This clause raises for consideration the objectives of the Zone No. 2(a). As I understand the council's submission, the application of this clause is raised by it in this appeal in relation only to the development application for subdivision. An issue raised before the Senior Commissioner was whether the proposed development was consistent with objective (b) of the Zone: "to permit a form of development which is compatible with the scale and character of the existing locality". The Senior Commissioner provided only a conclusion as follows: "The Court considers that it does." 47. It has long been settled by previous decisions of both this Court and the Court of Appeal that a "fine-tooth comb" approach should not be employed when examining decisions of technical commissioners for error of law (Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138; Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 283; Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367 at 368). In Brimbella, Kirby P (with whom McHugh JA agreed) said (at 368): Secondly, I believe that it is undesirable in an appeal from a lay tribunal where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless these words are central to the decision involved...

Here, the parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion for this Court to examine their decisions as if they were written by a lawyer. I am not, by these comments, suggesting double standards; simply that the Court should take into account the composition of the tribunal as it has been created by the parliament. 48. The difficulty in the present case is that the Senior Commissioner gave no reasons for his conclusion. A failure to give reasons may be an error of law. In Housing Commission of New South Wales v Tatmar Pastoral Co. Pty Limited [1983] 3 NSWLR 328 at 385-386, Mahoney JA said: There is, in my opinion, an established course of decision in this State that, in certain circumstances, it is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law:...

However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission:... Ordinarily, he may confine his attention to the points which have been taken and the submissions made in relation to them.... In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them. Reasons need to be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it. 49. In Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247, Kirby P said (at 259): This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of an appeal on question of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. 50. In North Sydney Council v Ligon 302 Pty Limited (1995) 87 LGERA 435, a case involving an appeal on a question of law from a decision of a Judge of this Court made in a planning appeal, Kirby P said (442): The only way by which this Court, and the parties, can discern whether a consideration crucial to the case was taken into account is by looking to the reasons of the judge who is subject to appeal to this Court. Whilst those reasons should not be examined in an overly critical or pernickety way, the facility of the appeal is provided by Parliament to ensure that a manifestly lawful decision is made. This Court has held many times that it is an incident of judicial duty to give reasons which extend to expressing findings upon issues which are critical to the point in contention in the case: 51. In Westport Marina Development Pty Limited v Concord Council [2000] NSWLEC 184, Pearlman J determined an appeal under section 56A of the Land and Environment Court Act 1979 from a decision of the Senior Commissioner. Pearlman J accepted the fact that the Senior Commissioner showed that he had a correct understanding of the question he had to determine in that case, which he described as a threshold question, namely "the extent of environmental impact and whether or not it is seen as requiring an environmental impact statement". What the Senior Commissioner had said in his decision was as follows: [15] Reverting then to the threshold question, the extent of environmental impact and whether or not it is seen as requiring an environmental impact statement, evidently the Court 's conclusion is that this is not the case. Accordingly the related idea that this might be seen as involving designated development, is also rejected by the Court. 52. Pearlman J said (at [28]): The Senior Commissioner's finding in relation to that question is set out in the next words of the passage I have quoted, that is, "evidently the Court's conclusion is that this is not the case". Here, I think, the Senior Commissioner fell into legal error. His conclusion may be taken, again adopting a broad approach, as implying that he had formed the requisite opinion. But he was required to give his reasons for the formation of that opinion, and a failure to do so is a legal error (Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247). The duty extends to expressing findings upon an issue which is critical to the case (Mifsud v Campbell (1990) 21 NSWLR 725) and this issue is certainly of that character. 53. The principals to which I have referred above show that the duty of a judge to disclose reasons for a decision is more onerous that that imposed upon a lay commissioner. Nevertheless, if a question is an issue in the case and it is one which is critical or fundamental to the case then, then, as in the Westport Marina Development case, even a lay commissioner is required to give reasons for his (or her) conclusion. 54. In the present case the question of compliance with the objective (b) of Zone No. 2(a) was in issue. It was, moreover, a fundamental issue. The development was not permissible within the zone, unless the hurdle presented by objective (b) was overcome. Reasons were required to show why, contrary to the position adopted by the council, the Senior Commissioner came to the view encapsulated in his statement: "The Court considers that it does". If the council had conceded that the development was consistent with the objectives of the zone then there would have been no problem: there would have been no issue to decide. But whilst it remained in issue then any determination of that issue was required to be supported by reasons. 55. The fact that it was an issue in the case is confirmed by a reading of the transcript of the submissions made by counsel for the council before the Senior Commissioner. Counsel submitted that the subdivision proposal was inconsistent with the relevant objective of Zone No. 2(a) which he identified the relevant objective as objective (b), and that clause 9(2) of the LEP precludes, as a matter of law, the Court from granting consent to an application which in its opinion is inconsistent with objective (b). This submission was made in relation to the subdivision proposal. Counsel for the council also submitted before the Senior Commissioner that the Court has to consider whether the subdivision itself is compatible with the scale and character of the existing locality to the north of the site. He further submitted that it is not; that it is in fact a far more dense form of subdivision than the scale and character of the existing locality; and that the subdivision pattern is itself inappropriate (transcript of submissions, pages 39-42). It follows that the issue was put squarely before the Senior Commissioner. 56. Although clause 9(2) uses the phrase "compatible with", I accept the applicant's submission that for the purpose of such a provision all that is necessary is a finding that the proposal is not antipathetic to the relevant objective (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). There is, however, no express finding by the Senior Commissioner that the proposed development is not antipathetic to the objective. 57. The applicant submits that the issue was encompassed not solely by issue No. 6 (noted in par [15] above) but also by issue No. 1: "whether the proposed plan of subdivision is appropriate having regard its lack of compatibility with the established pattern of subdivision of the adjoining residential area". In the applicant's submission, this was explicitly addressed by the Senior Commissioner (on page 17 of the decision) in the following terms: 1. Given the orientation of development on the five allotments and the need to produce a proper interface between residential development and landscaped open space intended in a draft strategic master plan, adoption of the configuration of adjoining allotments to the north would be quite inappropriate. In this context, the orientation of buildings and their planned configuration is seen as more suitably responded to by blocks of the proportion proposed than would be the case if more elongated blocks as found to the north were to apply. The proposed allotment layout is seen as both compatible with the existing allotments to the north and providing a proper transition in shape to the public open space to the south. 58. It seems to me, however, that this passage in the Senior Commissioner's decision is a reference only to the configuration of the allotments. It says nothing about the scale of the development compared with the scale of subdivisions in the existing locality. Moreover, the Senior Commissioner's consideration which I have set out above is directed to issue No. 1, not to issue 6 relating to consistency with the aims and objectives of the LEP and, in particular, objective (b) of Zone No. 2(a). 59. In relation to the issue of whether the proposed subdivision is consistent with objective (b) of Zone No. 2(a), I am after careful consideration unable to find a statement of reasons for the Senior Commissioner's conclusion: "The Court considers that it does." The statement of a bare conclusion on an issue which was raised by the parties does not amount to the giving reasons. The Senior Commissioner's failure to give reasons for his conclusion amounts to an error of law. Conclusion 60. It follows that the appeal must be allowed and the proceedings must be remitted for re-hearing. This does not mean that on a re-hearing the applications must necessarily be refused. It may be that after the proper questions have been answered and the relevant findings thereon have been made the development may nevertheless be found to have overcome the hurdles presented by the provisions to which I have referred and be otherwise acceptable on the merits. I have, of course, refrained from expressing any views thereon. 61. The council seeks an order that the proceedings be remitted for further hearing by a commissioner (or a judge) other than the Senior Commissioner. In support of its submission that it is not appropriate for the Senior Commissioner to hear the matter a second time, the council points to the statements in pars [56], [57] and [60] of the decision, which I have set out (in par [18] above). 62. As I understand the submission, if the Senior Commissioner is truly disquieted by the conduct of the council then there is doubt as to whether the reasonable person in the council's position would expect to get a fair hearing having regard to the rather trenchant (and unwarranted) criticism that is set out in the judgment. It is further submitted that the merits have already been determined; that it was the merits which drove the conclusions on the objection under SEPP 1 rather than the other way around; and it will be difficult to escape the reasonable apprehension that the process of going though the correct procedure required by SEPP 1 will be nothing more than a formality to justify the merit conclusion that has already been reached. It is submitted that, having regard to the manner in which the Senior Commissioner dealt with the matter, the outcome of the re-hearing would be a foregone conclusion and that this is not a result which engenders confidence in the system. 63. The applicant submits that if the Senior Commissioner erred in law, there is no reason why the proceedings should not be remitted to the Senior Commissioner for determination. This is not, it is submitted, a case of reasonable apprehension of bias, as one cannot assume that the Senior Commissioner is going to eschew his obligation to consider the matter according to law. In the applicant's submission, it is therefore unnecessary, and Court should be reluctant, after a nine-day hearing, including a view, to require the parties to start again in front of another commissioner (or a judge). 64. In my opinion, if the proposed development had complied in all respects with the statutory controls which applied, then the Senior Commissioner may have had some justification in making the remarks which he did. It must be remembered, however, that the development did not comply with clauses 12, 13 and 13A of the LEP and arguably may not comply with clauses 9(2) and 73(4). It seems that council was seeking to ensure that those provisions of its LEP were observed. In my opinion, the remarks of the Senior Commissioner which I have noted (in par [18] hereof) are irrelevant, inappropriate, have not been helpful and should not have been made. 65. The listing arrangements in the Court are entirely a matter for the Chief Judge. I note that when the Court of Appeal has remitted successful appeals to this Court it has generally declined to interfere in the internal listing arrangements in the Court. (See Steedman v Baulkham Hills Shire Council (1993) 80 LGERA 323 at 336, North Sydney Council v Ligon 302 Pty Limited [No. 2] (1996) 93 LGERA 23 at 32; contra, Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 416). I have noted the competing contentions of the parties and leave the constitution of the Court for the re-hearing of the remitted proceedings to the Chief Judge. It may be possible for some agreement to be reached by the parties on the extent to which the evidence called in the previous hearing should be used and on the calling of any fresh evidence now available. Orders 66. I make the following orders:

Appeal allowed. 2. The proceedings be remitted to the Court for re-hearing and determination conformably with these reasons. 3. The applicant (the respondent to this appeal) is to pay the council's costs of this appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2000) 110 LGERA 217

At a glance

Court

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Judgment (18 paragraphs)

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Cases Cited (11)